S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6589
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 12, 2019
                                ___________
 
 Introduced  by  M.  of  A.  DenDEKKER  --  read once and referred to the
   Committee on Consumer Affairs and Protection
 
 AN ACT to amend the general business law, in  relation  to  establishing
   the  "Right to repair act" to require original equipment manufacturers
   to make certain equipment available to  independent  repair  providers
   under fair and reasonable terms
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the  "Right  to
 repair act".
   § 2. The general business law is amended by adding a new section 198-d
 to read as follows:
   §  198-D. RIGHT OF CONSUMERS TO DIAGNOSE, SERVICE, MAINTAIN AND REPAIR
 MOTOR VEHICLES. (A) DEFINITIONS. AS USED IN THIS SECTION:
   (1) "AUTHORIZED REPAIR PROVIDER" MEANS: (I) A PERSON OR BUSINESS  THAT
 HAS  AN ARRANGEMENT FOR A DEFINITE OR INDEFINITE PERIOD WITH AN ORIGINAL
 EQUIPMENT MANUFACTURER IN  WHICH  THE  ORIGINAL  EQUIPMENT  MANUFACTURER
 GRANTS  TO  A  PERSON  OR  BUSINESS LICENSE TO USE A TRADE NAME, SERVICE
 MARK, OR RELATED CHARACTERISTIC FOR  THE  PURPOSES  OF  OFFERING  REPAIR
 SERVICES  UNDER THE NAME OF THE ORIGINAL EQUIPMENT MANUFACTURER; OR (II)
 A PERSON OR BUSINESS RETAINED BY THE ORIGINAL EQUIPMENT MANUFACTURER  TO
 PROVIDE  REFURBISHING SERVICES FOR THE ORIGINAL EQUIPMENT MANUFACTURER'S
 PRODUCT OR PRODUCTS.
   (2) "EMBEDDED SOFTWARE" MEANS ANY PROGRAMMABLE  INSTRUCTIONS  PROVIDED
 ON  FIRMWARE  DELIVERED WITH THE EQUIPMENT FOR THE PURPOSES OF EQUIPMENT
 OPERATION, INCLUDING ALL RELEVANT PATCHES AND FIXES MADE BY THE ORIGINAL
 EQUIPMENT MANUFACTURER FOR THIS PURPOSE, INCLUDING, BUT NOT  LIMITED  TO
 SYNONYMS  FOR  "BASIC  INTERNAL  OPERATING  SYSTEM", "INTERNAL OPERATING
 SYSTEM", "MACHINE CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10510-01-9

              

 A. 6589                             2
 
   (3) "EQUIPMENT" MEANS DIGITAL ELECTRONIC EQUIPMENT OR A PART FOR  SUCH
 EQUIPMENT  ORIGINALLY  MANUFACTURED  FOR  DISTRIBUTION  AND  SALE IN THE
 UNITED STATES.
   (4)  "FAIR  AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN LIGHT OF
 RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO:
   (I) THE NET COST TO THE AUTHORIZED REPAIR PROVIDER FOR SIMILAR  INFOR-
 MATION  OBTAINED  FROM  AN  ORIGINAL  EQUIPMENT  MANUFACTURER,  LESS ANY
 DISCOUNTS, REBATES, OR OTHER INCENTIVE PROGRAMS;
   (II) THE COST TO THE ORIGINAL EQUIPMENT MANUFACTURER FOR PREPARING AND
 DISTRIBUTING THE INFORMATION, EXCLUDING  ANY  RESEARCH  AND  DEVELOPMENT
 COSTS INCURRED IN DESIGNING AND IMPLEMENTING, UPGRADING, OR ALTERING THE
 PRODUCT,  BUT  INCLUDING AMORTIZED CAPITAL COSTS FOR THE PREPARATION AND
 DISTRIBUTION OF THE INFORMATION;
   (III) THE PRICE CHARGED BY OTHER ORIGINAL EQUIPMENT MANUFACTURERS  FOR
 SIMILAR INFORMATION;
   (IV) THE PRICE CHARGED BY ORIGINAL EQUIPMENT MANUFACTURERS FOR SIMILAR
 INFORMATION  PRIOR  TO  THE  LAUNCH  OF  ORIGINAL EQUIPMENT MANUFACTURER
 WEBSITES;
   (V) THE ABILITY OF AFTERMARKET TECHNICIANS  OR  SHOPS  TO  AFFORD  THE
 INFORMATION;
   (VI) THE MEANS BY WHICH THE INFORMATION IS DISTRIBUTED;
   (VII)  THE  EXTENT  TO  WHICH  THE  INFORMATION IS USED, INCLUDING THE
 NUMBER OF USERS, AND THE FREQUENCY, DURATION, AND VOLUME OF USE; AND
   (VIII) INFLATION.
   (5) "FIRMWARE"  MEANS  A  SOFTWARE  PROGRAM  OR  SET  OF  INSTRUCTIONS
 PROGRAMMED  ON A HARDWARE DEVICE TO ALLOW THE DEVICE TO COMMUNICATE WITH
 OTHER COMPUTER HARDWARE.
   (6) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
 IN THIS STATE WHO IS NOT AFFILIATED WITH AN ORIGINAL EQUIPMENT  MANUFAC-
 TURER OR AN ORIGINAL EQUIPMENT MANUFACTURER'S AUTHORIZED REPAIR PROVIDER
 AND  WHO IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE, OR REPAIR OF
 EQUIPMENT; PROVIDED, HOWEVER, THAT FOR THE PURPOSES OF THIS SECTION,  AN
 ORIGINAL  EQUIPMENT  MANUFACTURER  SHALL  BE  CONSIDERED  AN INDEPENDENT
 REPAIR PROVIDER FOR PURPOSES  OF  THOSE  INSTANCES  WHEN  SUCH  ORIGINAL
 EQUIPMENT  MANUFACTURER  ENGAGES IN THE DIAGNOSIS, SERVICE, MAINTENANCE,
 OR REPAIR OF EQUIPMENT THAT IS NOT AFFILIATED WITH THE  ORIGINAL  EQUIP-
 MENT MANUFACTURER.
   (7)  "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR TRANSPORT-
 ING PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND IS CERTIFIED  BY  THE
 MOTOR VEHICLE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMIS-
 SIONS STANDARDS AND REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED
 STATES. MOTOR VEHICLE DOES NOT INCLUDE:
   (I) A MOTORCYCLE; OR
   (II)  A RECREATIONAL VEHICLE OR MANUFACTURED HOME EQUIPPED FOR HABITA-
 TION.
   (8) "MOTOR VEHICLE DEALER" MEANS ANY PERSON OR BUSINESS  WHO,  IN  THE
 ORDINARY  COURSE  OF  BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING OR
 LEASING NEW MOTOR VEHICLES TO A PERSON OR BUSINESS PURSUANT TO  A  FRAN-
 CHISE  AGREEMENT,  WHO HAS OBTAINED A LICENSE AS A MOTOR VEHICLE DEALER,
 AND WHO IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE, OR REPAIR  OF
 MOTOR  VEHICLES  OR  MOTOR  VEHICLE  ENGINES  PURSUANT TO SUCH FRANCHISE
 AGREEMENT.
   (9) "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS  ENGAGED
 IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
   (10)  "ORIGINAL  EQUIPMENT  MANUFACTURER" MEANS ANY PERSON OR BUSINESS
 WHO, IN THE ORDINARY COURSE OF HIS OR HER BUSINESS, IS  ENGAGED  IN  THE

 A. 6589                             3
 
 BUSINESS  OF  SELLING OR LEASING NEW EQUIPMENT TO ANY PERSON OR BUSINESS
 AND IS ENGAGED IN THE DIAGNOSIS,  SERVICE,  MAINTENANCE,  OR  REPAIR  OF
 EQUIPMENT.
   (11)  "OWNER"  MEANS A PERSON OR BUSINESS WHO OWNS OR LEASES A DIGITAL
 ELECTRONIC PRODUCT PURCHASED OR USED IN THIS STATE.
   (12) "PART" OR "SERVICE PART" MEANS ANY REPLACEMENT PART,  EITHER  NEW
 OR  USED,  MADE  AVAILABLE BY THE ORIGINAL EQUIPMENT MANUFACTURER TO THE
 AUTHORIZED REPAIR PROVIDER FOR PURPOSES OF EFFECTING REPAIR.
   (13) "REMOTE DIAGNOSTICS" MEANS  ANY  REMOTE  DATA  TRANSFER  FUNCTION
 BETWEEN  EQUIPMENT AND THE PROVIDER OF REPAIR SERVICES INCLUDING FOR THE
 PURPOSES OF REMOTE DIAGNOSTICS, SETTINGS CONTROLS, OR LOCATION IDENTIFI-
 CATION;
   (14) "SERVICE PARTS" OR "PARTS" MEANS ANY  REPLACEMENT  PARTS,  EITHER
 NEW  OR  USED,  MADE AVAILABLE BY THE ORIGINAL EQUIPMENT MANUFACTURER TO
 THE AUTHORIZED REPAIR PROVIDER FOR THE PURPOSES OF EFFECTING REPAIR.
   (B) REQUIREMENTS. (1) FOR EQUIPMENT AND PARTS SOLD AND  USED  IN  THIS
 STATE,  THE  ORIGINAL EQUIPMENT MANUFACTURER OF SUCH EQUIPMENT AND PARTS
 SHALL:
   (I) MAKE AVAILABLE TO INDEPENDENT REPAIR PROVIDERS OR OWNERS OF EQUIP-
 MENT MANUFACTURED BY SUCH ORIGINAL EQUIPMENT MANUFACTURER THE SAME DIAG-
 NOSTIC AND REPAIR INFORMATION, INCLUDING REPAIR TECHNICAL UPDATES, SCHE-
 MATIC DIAGRAMS, UPDATES, CORRECTIONS TO EMBEDDED SOFTWARE AND SAFETY AND
 SECURITY PATCHES TIMELY, AND FOR NO CHARGE OR FOR THE SAME CHARGE AND IN
 THE SAME FORMAT SUCH ORIGINAL EQUIPMENT MANUFACTURER MAKES AVAILABLE  TO
 ITS  AUTHORIZED  REPAIR PROVIDER AND SUBCONTRACT REPAIR OF REFURBISHMENT
 FACILITIES; AND
   (II) MAKE AVAILABLE FOR PURCHASE BY THE OWNER, HIS OR  HER  AUTHORIZED
 AGENT,  OR  INDEPENDENT  REPAIR  PROVIDER,  EQUIPMENT  OR SERVICE PARTS,
 INCLUSIVE OF ANY UPDATES TO THE EMBEDDED SOFTWARE OF  THE  EQUIPMENT  OR
 PARTS, UPON FAIR AND REASONABLE TERMS.
   NOTHING  IN THIS SECTION SHALL REQUIRE THE ORIGINAL EQUIPMENT MANUFAC-
 TURER TO SELL EQUIPMENT OR SERVICE PARTS IF  THE  PARTS  ARE  NO  LONGER
 AVAILABLE  TO  THE  ORIGINAL  EQUIPMENT  MANUFACTURER  OR THE AUTHORIZED
 REPAIR PROVIDER OF THE ORIGINAL EQUIPMENT MANUFACTURER.
   (2) ANY ORIGINAL EQUIPMENT MANUFACTURER  THAT  SELLS  ANY  DIAGNOSTIC,
 SERVICE,  OR  REPAIR DOCUMENTATION TO ANY INDEPENDENT REPAIR PROVIDER OR
 TO ANY OWNER IN A FORMAT THAT IS STANDARDIZED WITH OTHER ORIGINAL EQUIP-
 MENT MANUFACTURERS, AND ON TERMS AND CONDITIONS MORE FAVORABLE THAN  THE
 MANNER  AND  THE  TERMS  AND CONDITIONS PURSUANT TO WHICH THE AUTHORIZED
 REPAIR PROVIDER OBTAINS THE SAME DIAGNOSTIC, SERVICE, OR REPAIR DOCUMEN-
 TATION, SHALL BE PROHIBITED FROM REQUIRING ANY AUTHORIZED REPAIR PROVID-
 ER TO CONTINUE PURCHASING DIAGNOSTIC, SERVICE, OR  REPAIR  DOCUMENTATION
 IN  A  PROPRIETARY FORMAT, UNLESS SUCH PROPRIETARY FORMAT INCLUDES DIAG-
 NOSTIC, SERVICE, OR REPAIR DOCUMENTATION OR FUNCTIONALITY  THAT  IS  NOT
 AVAILABLE IN SUCH STANDARDIZED FORMAT.
   (3) (I) EACH ORIGINAL EQUIPMENT MANUFACTURER OF EQUIPMENT SOLD OR USED
 IN THE STATE SHALL MAKE AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT
 REPAIR  PROVIDERS  ALL  DIAGNOSTIC  REPAIR  TOOLS INCORPORATING THE SAME
 DIAGNOSTIC, REPAIR, AND REMOTE  COMMUNICATIONS  CAPABILITIES  THAT  SUCH
 ORIGINAL  EQUIPMENT  MANUFACTURER  MAKES  AVAILABLE TO ITS OWN REPAIR OR
 ENGINEERING STAFF OR ANY AUTHORIZED REPAIR PROVIDER.
   (II) EACH ORIGINAL EQUIPMENT MANUFACTURER SHALL OFFER SUCH  TOOLS  FOR
 SALE TO OWNERS AND INDEPENDENT REPAIR PROVIDERS UPON FAIR AND REASONABLE
 TERMS.  EACH  ORIGINAL  EQUIPMENT  MANUFACTURER THAT PROVIDES DIAGNOSTIC
 REPAIR DOCUMENTATION TO  AFTERMARKET  DIAGNOSTIC  TOOL,  DIAGNOSTIC,  OR
 THIRD  PARTY  SERVICE  INFORMATION  PUBLICATIONS  AND SYSTEMS SHALL HAVE

 A. 6589                             4
 
 FULLY SATISFIED ITS OBLIGATIONS UNDER THIS SECTION AND THEREAFTER NOT BE
 RESPONSIBLE FOR THE CONTENT AND FUNCTIONALITY OF SUCH AFTERMARKET  DIAG-
 NOSTIC TOOLS, DIAGNOSTICS, OR SERVICE INFORMATION SYSTEMS.
   (4) ORIGINAL EQUIPMENT MANUFACTURER EQUIPMENT OR PARTS SOLD OR USED IN
 THE  STATE  FOR  THE PURPOSE OF PROVIDING SECURITY-RELATED FUNCTIONS MAY
 NOT EXCLUDE DIAGNOSTIC, SERVICE, AND  REPAIR  INFORMATION  NECESSARY  TO
 RESET  A  SECURITY RELATED ELECTRONIC FUNCTION FROM INFORMATION PROVIDED
 TO OWNERS AND INDEPENDENT REPAIR  FACILITIES.  IF  EXCLUDED  UNDER  THIS
 PARAGRAPH,  THE  INFORMATION NECESSARY TO RESET AN IMMOBILIZER SYSTEM OR
 SECURITY RELATED ELECTRONIC MODULE SHALL BE OBTAINED BY OWNERS AND INDE-
 PENDENT REPAIR FACILITIES THROUGH THE APPROPRIATE  SECURE  DATA  RELEASE
 SYSTEMS.
   (C)  LIMITATIONS.  (1)  NOTWITHSTANDING ANY LAW, RULE OR REGULATION TO
 THE CONTRARY, NO PROVISION OF THIS SECTION SHALL BE  READ,  INTERPRETED,
 OR CONSTRUED TO ABROGATE, INTERFERE WITH, CONTRADICT, OR ALTER THE TERMS
 OF  ANY  AGREEMENT  EXECUTED  AND  IN FORCE BETWEEN AN AUTHORIZED REPAIR
 PROVIDER AND AN ORIGINAL  EQUIPMENT  MANUFACTURER,  INCLUDING,  BUT  NOT
 LIMITED  TO,  THE  PERFORMANCE OR PROVISION OF WARRANTY OR RECALL REPAIR
 WORK BY AN AUTHORIZED REPAIR PROVIDER ON BEHALF OF AN ORIGINAL EQUIPMENT
 MANUFACTURER PURSUANT TO SUCH AUTHORIZED REPAIR AGREEMENT,  EXCEPT  THAT
 ANY  PROVISION  IN  SUCH AN AUTHORIZED REPAIR AGREEMENT THAT PURPORTS TO
 WAIVE, AVOID, RESTRICT, OR LIMIT AN  ORIGINAL  EQUIPMENT  MANUFACTURER'S
 COMPLIANCE WITH THIS SECTION SHALL BE VOID AND UNENFORCEABLE.
   (2)  NOTHING  IN  THIS  SECTION SHALL BE CONSTRUED TO REQUIRE ORIGINAL
 EQUIPMENT MANUFACTURERS OR AUTHORIZED REPAIR  PROVIDERS  TO  PROVIDE  AN
 OWNER OR INDEPENDENT REPAIR PROVIDER ACCESS TO NON-DIAGNOSTIC AND REPAIR
 INFORMATION  BY  AN  ORIGINAL  EQUIPMENT  MANUFACTURER  TO AN AUTHORIZED
 REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHORIZING AGREEMENT.
   (D) ENFORCEMENT. A VIOLATION OF THIS SECTION SHALL BE  ENFORCEABLE  BY
 THE  ATTORNEY  GENERAL  AND  PUNISHABLE  BY  A FINE OF A MAXIMUM OF FIVE
 HUNDRED DOLLARS PER INCIDENT.
   § 3. This act shall take effect on the one hundred twentieth day after
 it shall have become a law. Effective immediately, the addition,  amend-
 ment  and/or repeal of any rules or regulations necessary for the imple-
 mentation of this act on its effective date are authorized  to  be  made
 and completed on or before such effective date.